Opalinski v Coordinator-General - [2013] QLC 57

LAND COURT OF QUEENSLAND

CITATION:Opalinski v Coordinator-General;
Opalinski v Chief Executive, Department of Transport and Main Roads [2013] QLC 57

PARTIES:Zdzislaw Joe Opalinski
(applicant)
v
Coordinator-General
Chief Executive, Department of Transport and Main Roads
(respondents)

FILE NO:AQL338-10
AQL033-12

DIVISION:General Division
PROCEEDING:  General applications brought by the applicant that the proceedings be heard together.
DELIVERED ON:                  5 September 2013
DELIVERED AT:                   Brisbane
HEARD ON:  8 August 2013
HEARD AT:Brisbane
MEMBER:W A Isdale

ORDERS:1. The applications for the two matters to be heard together are refused.
2.Any application for costs is to be filed and served within 14 business days of the publication of these reasons and any reply is to be filed and served within 14 business days of the application.

CATCHWORDS: Applications for proceedings to be heard together – Uniform Civil Procedure Rules 1999, r 79 – two separate resumptions of land giving rise to separate claims for compensation under the Acquisition of Land Act 1967 – land taken from the same parent parcel in different years by different constructing authorities for different purposes – whether compensation claims should be heard together – consideration of relevant factors – exercise of discretion – applications refused.

Acquisition of Land Act 1967
Uniform Civil Procedure Rules 1999

Berry & Anor v Gold Coast City Council (2011) 32 QLCR 251; [2011] QLC 53
Bishop v Bridgeland Securities (1990) 25 FCR 311

Board of Trustees of the Brisbane Grammar School and Brisbane City Council (2011) 32 QLCR 348; [2011] QLC 69
Board of Trustees of the Brisbane Grammar School v Brisbane City Council (No 2) [2012] QLC 35
Cameron v McBain [1948] VLR 245
Cousins v Cousins (1948) 51 WALR 57
Ghose v CX Reinsurance Co Ltd [2010] NSWSC 110
Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699

APPEARANCES: Mr D Gardiner, instructed by Bradley Munt & Co solicitors for the applicant.
Mr D O'Brien, instructed by Corrs Chambers Westgarth lawyers for both the respondents.

Background
The Coordinator-General's resumption

Acting pursuant to the Acquisition of Land Act 1967 (the Act), the Coordinator-General by a taking of land notice published on 14 December 2007, acquired easements over land owned by the applicant. The easements were for the purpose of water pipeline infrastructure which was part of the Western Corridor Recycled Water Scheme. The applicant referred his claim for compensation to the Court on 24 August 2010.
The Court made its first Order in this proceeding on 11 November 2010 and a subsequent 14 Orders for the progress of the proceedings, including an Order on 5 March 2013 that the applicant pay the respondent the sum of $1,500 for the costs of the proceedings on that day.

The Department of Transport and Main Roads’ resumption

The Department of Transport and Main Roads, also proceeding under the Act, by a taking of land notice published on 12 June 2009, took parts of the applicant's land for the purpose of the Ipswich Motorway. The applicant referred his claim for compensation in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Opalinski v Coordinator-General

Details

AGLC: Opalinski v Coordinator-General [2013] QLC 57
Case: [2013] QLC 57
Decision Date: 5 September 2013

CaseChat Overview and Summary

Zdzislaw Joe Opalinski sought to consolidate two separate resumption proceedings before the Land Court of Queensland. Both proceedings related to different land resumptions by the Coordinator-General and the Department of Transport and Main Roads, respectively, for different purposes and at different times. Opalinski argued that the proceedings should be heard together due to common issues and potential cost savings. The respondents opposed the applications, asserting differences in the issues, states of preparation, and the potential for increased court time and costs if the proceedings were combined.

The court considered the relevant factors in exercising its discretion under Rule 79 of the Uniform Civil Procedure Rules 1999. It noted that the Coordinator-General’s matter was much closer to trial readiness compared to the other proceeding. The court also highlighted the lack of evidence regarding the potential cost savings of combining the proceedings and the respondents' concern about the delay and increased costs it would cause. Ultimately, the court determined that the public interest in timely and efficient justice, along with the respondents' desire to avoid delays, outweighed Opalinski's desire to combine the proceedings for potential cost savings.

The court refused both applications to hear the matters together, finding that the Coordinator-General would be unjustifiably prejudiced by any delay in resolving the first matter. The court also noted that there would be no prejudice to Opalinski beyond the costs necessarily associated with the separate proceedings. The court ordered that any application for costs must be filed and served within 14 business days of the publication of these reasons.

Orders